OP(C) NO. 2714 OF 2019

``` OP(C) NO. 2714 OF 2019 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 ``` ## **`OP(C) NO. 2714 OF 2019`** ## **`AGAINST THE ORDER IN I.A 768/2013 IN O.S 447/2010 OF ADDITIONAL SUB`** ## **`COURT,NORTH PARAVUR`** ## **`PETITIONERS/PETITIONER AND RESPONDENTS 1 AND 2 IN FINAL DECREE`** ## **`APPLICATION:`** - `1 SAAJI M.S., AGED 59 YEARS S/O. SURENDRANATH, RESIDING AT MATTAPPILLY HOUSE, KODUVAZHANGA, NEERICODE KARA, ALANGAD VILLAGE, PARAVUR TALUK.` - `2 REEJA M.S., D/O. SURENDRANATH, W/O. JAYARAJAN, RESIDING AT P AND T QUARTERS, THEVARA KARA, KANAYANNUR TALUK.` - `3 T.G. BABY, W/O. SURENDRANATH, RESIDING AT MATTAPPILLY HOUSE, KODUVAZHANGA, NEERICODE KARA, ALANGAD VILLAGE, PARAVUR TALUK. BY ADVS. S.SHYAM SRI.M.M.HARRIS` ## **`RESPONDENTS/RESPONDENTS 3 TO 5 IN FINAL DECREE APPLICATION:`** - `1 SAJEEVAN, AGED 50, S/O. KUMARAN, RESIDING AT CHAITRAM, NEAR PANCHAYAT OFFICE, EDAVANAKKADU KARA, EDAVANAKKAD VILLAGE, KOCHI TALUK-682502.` - `2 AMAL, AGED 25, S/O. SAJEEVAN, RESIDING AT CHAITRAM, NEAR PANCHAYAT OFFICE, EDAVANAKKADU KARA, EDAVANAKKAD VILLAGE, KOCHI TALUK-682502.` - `3 ATHUL, AGED 23, S/O. SAJEEVAN, RESIDING AT CHAITRAM, NEAR PANCHAYAT OFFICE, EDAVANAKKADU KARA, EDAVANAKKAD VILLAGE, KOCHI TALUK-682502.` ``` BY ADV SRI.M.G.JEEVAN ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2023, THE ``` ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 2714 OF 2019 ``` ``` 2 ``` ## **JUDGMENT** The original petition is filed challenging Ext.P5 order passed in I.A No.768/2013 in O.S. 447/2010 by the Court of the Subordinate Judge, North Paravur. The petitioner and the respondents 1 and 2 in the final decree application are the petitioners and the respondents 3 to 5 in the said application are the respondents in the original petition. 2. The brief relevant facts leading to Ext.P5 order are: (i) O.S No.447/2010 was filed by the first petitioner for a decree of partition. (ii) Ext.P1 preliminary decree was passed on 22.11.2012. (iii) The first petitioner filed I.A No.768/2013, to pass the final decree. The petitioners filed a written submission ``` OP(C) NO. 2714 OF 2019 ``` ``` 3 ``` before the Advocate Commissioner praying that their shares may be allotted in one plot. (iv) The court below, by Ext.P3 order, remitted the report back to the Advocate Commissioner. The Advocate Commissioner filed Ext.P4 report and plan. (v) Again, the court below, by the impugned Ext.P5 order set aside the three reports and appointed a new Advocate Commissioner effecting physical division of the properties covered by Ext.P1 preliminary decree. (vi) Ext.P5 order is erroneous and unsustainable in law. Hence, the original petition. 3. Heard; Sri. S.Shyam, the learned counsel appearing for the petitioners and Sri.M.G.Jeevan, the learned counsel appearing for the respondents. 4. The question is whether there is any error in Ext.P5 order? 5. The court below by Ext.P1 preliminary decree held as follows: ``` OP(C) NO. 2714 OF 2019 ``` ``` 4 ``` “A. That the plaintiff and 2[nd] defendant allowed to get partition and separate possession of their 1/4th share each over plaint A & B schedule properties. Since the 1[st] defendant has made a claim to allot her share in B schedule property over the portion adjoining her husbands property the said prayer has to be considered at the time of allotting the share in the final decree. B. Decree be passed restraining defendants 4 to 6 from altering the position, lie and nature of the B Scheduled property as reported in Ext.C1 (series) and also effecting any permanent constructions in the B schedule property. C. Parties may apply for passing final decree within 90 days from the day of this Court. D. In the circumstances of the case, parties are directed to suffer their respective costs”. 6. On the basis of Ext.P1 preliminary decree, the first petitioner filed I.A No.768/2013 to pass the final decree. 7. An Advocate Commissioner was appointed who filed Ext.P2 report. 8. The court below, by Ext.P3 order, finding Ext.P2 report to be dis-satisfactory, remitted the report back to the Advocate Commissioner for the following purposes. ``` OP(C) NO. 2714 OF 2019 ``` ``` 5 ``` “1. The plan in respect of decree A schedule property shall specifically show building No.VI/285 i.e., the residential building therein. 2. The Advocate Commissioner is required to consider the feasibility of allotment of the residential building in a single share. 3. The first plan in respect of plaint A schedule property shall be prepared afresh after a re-allotment is made, avoiding a plot being framed in north south direction, lengthwise. 4. If convenient division of decree A and B schedule properties is not possible in view of the lie and extent, the Advocate Commissioner may recommend allotment of the plot or plots to particular sharer or sharers and may also recommend owelty to be paid by such sharers to the other sharers to whom no allotment is recommended. In fixing owelty the Advocate commissioner shall take into account the present market value of the property prevailing in the locality and not the fare value fixed by the Government. The Advocate Commissioner shall also take into account the value of the improvement and structures. 5. As far as practicable the Advocate Commissioner is required to avoid framing all plots which are not capable of any utility to the allottees. In other words, the Commissioner is requested to make allotment in such a manner that the plots can have maximum utility to the allottees.” 9. Pursuant to Ext.P3 order, the Advocate Commissioner filed Ext.P4 report. ``` OP(C) NO. 2714 OF 2019 ``` ``` 6 ``` 10. But, the court below, by the impugned Ext.P5 order, finding that the Advocate Commissioner has made an inequitable distribution of properties, set aside the reports and plans on record and appointed a fresh Advocate Commissioner. 11. Order XXVI Rule 14 of the Code of Civil Procedure reads as follows: ## **“14.PROCEDURE OF COMMISSIONER:** (1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares. (2) The commissioner shall then prepare and sign a report or the Commission (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to Court; **and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.** (3 Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either ``` OP(C) NO. 2714 OF 2019 ``` ``` 7 ``` issue a new commission or make such other order as it shall think fit.” 12. A reading of sub-rule (2) of Rule 14 of Order XXVI of the Code, undoubtedly reveals that the court, after hearing the objections of the parties, is bestowed with the power to confirm, vary or set aside the report and then pass a decree. 13. In the case on hand, the court below has set aside the report and plan on record and appointed a new Advocate Commissioner for the reason that the Advocate Commissioner failed to comply with the directions in Ext P3 order. 14. In **Francis Assisi vs. Sr.Breeziya** [2017 KHC 15] a Division Bench of this Court has held that, in partition suits, commission reports cannot be remitted, but have to be set aside, and a new Advocate Commissioner is to be appointed. However, recently, another Division Bench of this Court in OP(C) No.1679/2019 has held that **Francis** ``` OP(C) NO. 2714 OF 2019 ``` ``` 8 ``` **Assissi** (supra) is no longer good law, and commission reports can be remitted even in partition suits. 15. It is the case of the petitioners that they had made a request to the Advocate Commissioner that the building in schedule-A may be allotted to them. Similarly, the respondents 3 to 5 had made a request to the Advocate Commissioner that the property in schedule-B may be allotted to them. 16. In the above conspectus, after evaluating the pleadings and materials on record, the law on the point and bearing in mind that the suit is of the year 2010, and particularly the fact that the court below has set aside the report only because the Advocate Commissioner did not comply with the directions in Ext P3 order, this Court is of the view that the court below is to be directed to reconsider whether the commission report is to be set aside or not. 17. Thus, without expressing anything on merits of ``` OP(C) NO. 2714 OF 2019 ``` ``` 9 ``` the matter, and reserving the rights of both sides to advance their respective submission, I relegate the parties back to the court below for fresh consideration. Resultantly, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I allow the original petition as follows: - (i) Ext.P5 order is set aside. (ii) The Court of the Additional Subordinate Judge, North Paravur, is directed to reconsider I.A No.768/2013 afresh, after affording both sides an opportunity of being heard, and dispose of the application, in accordance with law, as expeditiously as possible, untrammeled by any observation made in the impugned order or this judgment. (iii) As the suit is of the year 2010, the entire exercise of deciding I.A No.768/2013 shall be done as expeditiously as possible. **Sd/- C.S.DIAS, JUDGE** ma/08.3.2023 ``` OP(C) NO. 2714 OF 2019 ``` ``` 10 ``` ## **`APPENDIX OF OP(C) 2714/2019`** ``` PETITIONER EXHIBITS EXHIBIT P1COPY OF PRELIMINARY DECREE DATED 22/11/2012 IN OS NO.447/2010 OF THE SUB COURT, NORTH PARAVUR. ``` ``` EXHIBIT P2COPY OF REPORT DATED 16/03/2015 IN OS NO.447/2010 OF THE SUB COURT, NORTH PARAVUR. ``` ``` EXHIBIT P3COPY OF DATED 21/02/2018 IN IA NO.768/2013 IN OS NO.447/2010 OF THE SUB COURT, NORTH PARAVUR. ``` ``` EXHIBIT P4COPY OF SECOND COMMISSION REPORT DATED 17/10/2018 ALONG WITH THE PLANS IN OS NO.447/2010 OF THE SUB COURT, NORTH PARAVUR. ``` ``` EXHIBIT P5COPY OF THE ORDER OF THE COURT BELOW DATED 20/07/2019 IN IA O.768/2013 IN OA NO.447/2010 OF THE SUB COURT, NORTH PARAVUR. ```